Over a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg, the Supreme Court last night declined to block the executions of three Ohio men. One of the inmates, Ronald Phillips, is scheduled to be put to death today for the 1993 rape and murder of his girlfriend’s daughter.
Phillips and the other two inmates, Gary Otte and Raymond Tibbetts, had challenged the three-drug protocol that the state plans to use to carry out their executions, arguing that it violates the Eighth Amendment’s ban on cruel and unusual punishment. Phillips’ execution would be the first in Ohio since 2014, when inmate Dennis McGuire was executed using a different combination of drugs. Eyewitnesses said that McGuire appeared to be gasping for air and sometimes choking for roughly half of the 24 minutes it took him to die.
The Supreme Court has ruled that inmates challenging a planned method of execution must show both that the method creates a substantial risk of severe pain and that a less painful alternative is known and available. A federal district court ruled that Phillips and the other inmates had made this showing. It pointed to expert testimony which suggested that midazolam, the first drug in the state’s lethal-injection protocol, will sedate the inmate but will not render him impervious to the pain that the second and third drugs – which paralyze him and then stop his heart – can cause. Moreover, the district court concluded, the inmates had demonstrated that Ohio could use another drug – pentobarbital, a barbiturate that would prevent the inmate from feeling pain – as part of the three-drug protocol instead. But a divided federal appeals court reversed, prompting the inmates to go to the Supreme Court.
The justices refused to intervene. In her brief dissent, Sotomayor complained that the lower court should have given more deference to the district court’s findings. Sotomayor referred back to her dissent in another lethal-injection case earlier this year, in which she had expressed “significant doubts about the wisdom of imposing the perverse requirement that inmates offer alternative methods for their own execution” but, at the very least, had urged her colleagues to provide “clarification and guidance” on the rule. Last night, she closed her opinion by indicating that she would “dissent again from this Court’s failure to step in when significant issues of life and death are present.”
Phillips is scheduled to be executed at 10 a.m. EDT today. The executions of Otte and Tibbetts are currently scheduled for September 13 and October 18, respectively.